Agenda - Planning Commission - 10/07/1997

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Page 2-August 25,1997 Z.B. Wetlands - Did state's refusal to certify filling of wetlands deprive owner of practical use of property? King v. State, 481 S.E.2d 330 (North Carolina) 1997 King owned 8 acres on a North Carolina peninsula that she wanted to develop. She planned to build a road down the center of the property and a bulkhead around the peninsula's perimeter. To build the road, she would have to fill in 2 acres of wetlands. Under the federal Clean Water Act, anyone wishing to fill wetlands first had to get a permit from the U.S. Army Corps of Engineers. To get the permit, King had to get certification from the state Environmental Management Commission (environmental commission) that the fill material met state water- quality standards. King applied for both certification and a development permit. Both requests were denied, so she appealed the denials to the appropriate state agencies. The environmental commission affirmed the denial of the wetlands certification. The Coastal Management Commission ordered that King be granted the development permit, but only if she got the wetlands certification before she started developing. . King again appealed the certification denial, and the environmental commission affirmed, saying King's proposed fill would degrade the surrounding shellfish waters. It said there were less damaging alternatives for the construction, such as building the road off to the side rather than down the center of the property, or planning to build any future houses on stilts. King asked a court to review l;>oth the certification denial and the conditional development permit. The court reversed the certification denial but said it was proper for the Coastal Management Commission to condition the development permit on King's getting the certification. The environmental commission appealed, and the appeals court reversed. The court said the environmental commission had enough facts to support its decision to deny certification. King sued the state, claiming the commissions' decisions denied her all reasonable use of her property and constituted an unconstitutional taking without just compensation. She presented an affidavit from a land surveyor who said the only practical way to subdivide the property was to build a road down the center. A real estate appraiser said that if the property were developed according to King's proposal, it would be worth $1.4 million. Otherwise, it would be worth about $3,700. The court granted the state's request for judgment without a trial, and King appealed. She argued the state failed to give any practical alternatives to her proposal that would prevent her property from being rendered valueless. Without such alternatives, she said, the state's decisions were an unreasonable exercise of its police power. DECISION: Affirmed. King's taking claim couldn't go to trial. Neither denial of wetlands >. . I~